Lawyers for the Toronto Star and other media outlets are fighting an order that excluded the media from a hearing that allowed a judge in Chatham to decide in secret to remove 14 children from three Lev Tahor families.

“It’s very disturbing that a judge would just simply close a courtroom without any opportunity to make submissions about why it should be closed or giving any indication herself about why it’s closed other than in the vaguest terms about protecting children,” said Paul Schabas, one of the lawyers representing the Toronto Star, CBC, the Globe and Mail and CTV. “An order closing a courtroom is a very extreme order. Typically children are protected by not naming them.”

Schabas, who works for the firm Blakes, Cassels & Graydon LLP, filed a notice of motion Thursday requesting that the matter be heard on an urgent basis. In it, he notes that access to court is protected by the Charter of Rights and Freedoms and calls the exclusion order “an extraordinary restriction of the open courts principle.”

Superior Court of Justice Judge Lynda Templeton made the order suddenly Wednesday and refused to allow the media time to consult counsel or make arguments themselves.

“In light of the delicate nature of the evidence the court was about to hear, and the risk to the wellbeing and safety of these children associated with their departure, the court exercised its jurisdiction under the Child and Family Services Act and ordered that the hearing be held in private,” wrote Templeton in her endorsement on an order that led to the hearing being held in secret.

Since the hearing has already happened, the notice of motion is requesting a transcript and copies of all materials filed in court.

“What this judge has done is simply cloak everything in secrecy without telling us why. That raises suspicion about what judges are doing,” said Schabas, who noted children are protected by a publication ban on their identities that the media has respected throughout the hearing. ”

Lawyers are still waiting to hear whether the matter is deemed urgent, at which time a court date will be scheduled. If it is judged to be urgent by the court, the date will be sooner than if not.

“It’s an urgent matter because something’s happening in a courtroom and the public doesn’t know what’s going on. The public has a constitutional right to know when it happens what’s going on in our courts,” said Schabas.

The decision as to whether the matter is urgent falls to Regional Senior Justice Thomas Heeney, who has received the request but, as of Thursday evening, had not yet responded.

“I think it’s extreme. The act allows for the judge to exclude members of the media where there’s evidence that there will be harm to the children, but the case law is clear that that should only be ordered when it’s absolutely necessary when any lesser remedy is available. It strikes me that the court could have done any number of things short of an exclusion order,” said Sean Moreman, senior legal counsel for CBC.

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